The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1887-05-01
ON MATTERS OF LAW.
Judge Sutherland's Lecture at
the University Yesterday.
THE SUBJECT OF MORTGAGES.
The Ancient and Modern Usages-The
Rights of Mortgage and Mort
gagor-Chattel Mortgages,

roIIoWlnS IS Synopsis or the lecture
delivered at the University yesterday,
by Judge Sutherland, his subject being
Mortgages"
A mortgage is conveyance for the
purpose of securing debt, and it ceases
when the debt is paid. Its general OBJ
ject is, that if specified debt be not
paid by time agreed upon by the
parties, the creditor may sell the iand
and pay himself out of the proceeds. q
mortgage, however, may secure any
other obligation than debt.
Ancently, a mortgage wa made by a
fiefment, delivery of actual possession
to the creditor, who made a covenant
to reconyey it when the debt should be
paid. The ancient law was strict on this
point, all interest passing from the
debtor to the creditor; and the condi-
tons had to be performed at the
time specified and in the terms of the
mortgage, or the creditors title in the
estate became absolute.
By the common law, the mort
gage was the owner of the mort
gagged estate; but. by the jurisdiction of
courts of equity, it came to be that
the mortgagor was the real
owner, and the mortgage only an en-
cumbrancer. The mortgager has, IN
modern law, right to redeem his es-
tate, after it has, according to the strict
terms of the moEtgage, been forfeited.
This right is called his equity of re-
demption; thus, the owner of the land
IS still the owner, and the mortgage only
a creditor for the money he advanced on
1t. Further, the mortgagor can redeem
the mortgage at any time before the
statute of limitation runs out. Ia most
Of the States, there is a statute taking
away the right, which the mortgagor
enjoyed under the common law, of Sc
curing possession of the property be-
fore foreclosure ard sale.
All modes of conveyance suffice to
create a mortgage and to convey this
base and determinable fee. 1t is a base
fee since it is not fee simple; and de-
terminable since the conditions of the
conveyance title are liable to be de-
feated.
We have public record kept of all
conveyauces or other transactions
affecting the title to property. This
is more for the purpose of giving
notice to the public than for any
thing else, so that whoever deals
with the supposed owner, may be
aware OF the extent OF possession the
latter has in the estate. The methods
of record IN different places have a
general similarity; and 40 conveyance
is good as against creditors, or against
subsequent purchasers in good faith
and for value, unless the conveyance is
recorded. If this is neglected, the
grantor may again sell or convey his
estate; and should this second convey
ance be recorded first it will take pre-
ference over the first conveyance, or at
least subject the first grantee to that
risk.
A purchaser who buys on the faith
of the grantor being the owner of the
estate, nothing to the contrary appear
ing on record, and who pays value for
the same, obtains the deed, and has
the transaction duly recorded, is the
owner of the estate. Any prior uH-
recorded sale or conveyance does not
affect his title, being void. But if the |
purchaser knew of prior unrecorded |
deed or mortgage, then his transaction |
would not be in good faith, and the |
prior conveyance would not be void. |
This construction of law harmonizes |
with sense and justice; for in such a |
case the purchaser would be acting |
with fraudulent intent to defeat the |
estate of the first buver.
When q vendor sells land, court of |
,quity recognizes that he has al i'm
piled lien on the land for the amount of
The purchase money remaining unpaid;
!, sale has thus all the equitable prop
critics of q mortgage.
If the MORTGAGE takes possession of
he estate, and the debt is then paid,
he mortgage is ended and its terms are
7oid. Even though the debt is not paid
Ill after the time it was due, and when,
according to the strict terms of the con-
7eyance, the estate belongs to the mort
he mortgagor, and a recOnVeyance to
linn is not necessary. Formerly, how
,ver, a reconveyance to the original
,wner was necessary. When the mort
rage is redeemed the mortgage is re-
luired by law, under penalty Of being
ined, to make a recorded acknoWl-
.dgement of the fact of payment.
If the mortgage is IN actual posses
ion, and the time OF payment passes.
nd if he has used the property, paid |
axes, made repairs, collected rents, etc.,
cases arise for determine
ion by the courts. The profits OF the
state go to the credit of the mOrtgagor;
nd the necessary expenses paid by the
nortgagee goes to the credit of the
after, who is restrained. however, from
making any Improvements on the
Were he permitted to make I
ny improvements he chose, he could !
improve the mortgagor out of his q
and thus defeat the equity OF
exemption. The mortgage is charge
BILE with reasonable rent, but is per : :
aitted to have deducted what he pays !
q discharging prior legal obligations. t
lie takes possession as creditor, and I
must yield up the estate when the debt a
!, paid as decided by a court OF chan c
cry. The debtor (mortgagor) is re-
uired to come before court Of chan
cry, or to go to his creditor (the mort 4
agee) and tender payment for the debt I
Tithin the time that man out of y
may contest the estate c
{ an adverse possessor. This
me, originally twenty years, has h
cen considerably shortened in diff Z
,rent parts of this country. The 7
also, must proceed to fore 3